tv Experts Tell Senate Panel New AUMF is Needed for Military Action in Syria CSPAN June 20, 2017 8:09pm-9:49pm EDT
color. >> sunday night on q&a. >> here on c-span, an update on the georgia special election. polls closed an hour and 10 minutes ago. with 1% reporting, jon ossoff has a slim lead. 51% over the republican. we will keep you posted on the results as they come in and bring you victory and concession speeches later tonight. a senate hearing looks at congressional authorizations for military missions overseas including the 2001 law granting authority for a tax against terrorist organizations around the world. legal advisors testified about how these authorizations are
the helpful as we reengage on this difficult topic. it has been a decade since 9/11. there is an interest to revisit and refresh the authority we used to fight terrorism. 2014, we saw the rise of isis, which seized territory and has drawn for an fighters and conducted enabled or inspired repeated attacks against the united states. as a result of these types of threats multiple presidents have used the 2001 authorization for military force by the necessity to conduct drawn strikes and put american troops on the ground in multiple countries. there are a multitude of terrorist groups operating today that pose a direct threat to the united states and have lesser connection to the 9/11 attacks. many have questioned whether the
amf covers these groups. i've always believed it is important for congress to exercise its constitutional role to authorize the use of force and our country is better off when congress clearly authorizes the wars we fight. as a matter of fact we are approaching the day when an american soldier will deploy to combat over legal authority passed before they were born. wrote the president will continue to operate under an outdated authorization leaving the door open for presidents to claim powers that will over time you wrote the balance of power fundamental to our constitutional system. .hat statement remains true it is one that i think most members of congress will agree with. there are very real reasons why congress has been unable to pass a new authority.
first and most importantly the 2001 amf continues to provide our military with the authority they need to protect american citizens from threats. in the past year american forces have been on the ground fighting terrorism in five countries. i believe the president has the authority under the 2001 amf to take action against isis as the obama administration testified before this committee. provides the necessary legal authority for us to continue this fight. we should not risk its expiration without a replacement. some members of congress will use this debate for the purpose of imposing limitations on our president. others may refuse to limit a president at war in any way. that is a wide gap to bridge. passingue that while
and amf may not be a legal necessity, it is a moral one. they believe congress must fill its duty of authorizing war and show men and women fighting around the world their elected representatives should -- support the war. i share many of those sentiments that believe we must guard against an outcome that could have the opposite effect. while congress strongly supports the fight against isis and has funded the effort, the failure to bridge differences and pass a new amf could create a false impression of disunity during a time of war. with the backdrop of these challenges i contend -- intend to conduct this debate that serves best our natural interest -- national interest.
i want to thank senators kaine and flake for their tireless efforts. senator young for presenting his net own amf. hearing to doa the same thing. i appreciate the work done to develop bipartisan solutions. i want to thank you for your presence today. it is useful and helpful to us. i look forward to your testimony. i would like to turn to our distinguished ranking member and thank all committee members. i think what we did last week on the senate floor through intense negotiations struck exactly the right balance and continued to call to this committee to reclaim our rightful role setting policies, foreign policies that are important to our nation.
>> thank you mr. chairman. i totally concur in your comments about the actions last week. i think it was the united states senate guided by this committee that did exactly what we needed to do in regard to the appropriate role of congress. i also thank you for holding this hearing. much of what you said in your opening statement i agree with. there are some differences i will point out in my opening statement. i do agree this is one of the most important responsibilities we have, one in which hearings are important for us to get this right. we can't run away from this responsibility. i join you in thinking senator kaine and flake for their leadership for many years of pointing out that congress has the responsibility to express
itself on the use of military force and the interpretations of democratic and republican administrations on our till thousand one operations go well beyond what congress intended. i think them for their leadership. senator young, thank you for your leadership. this committee took up this issue under senator menendez. we did not come to an agreement. the administration was not supportive we attempted to come together on that issue. in the awake of the attacks against our country on september you angress passed in a math targeting the perpetrators of those attacks and the taliban who harbor them in afghanistan. in 2002 congress passed a second, when written these provided the president with latitude to target terrorist
affiliates to better combat the threat of terrorism. stretchedude has been beyond what congress intended. there now 16 years beyond 2001 a you a math. -- a umf. mr. chairman, let me read what the authorization said. a president is authorized to use all necessary and appropriate force against those nations, organizations, or persons who he determines planned, authorized, committed or aided the terrorist attacks that occurred on september 11, 2001. or harbored such organizations or persons to prevent any future
acts of international terrorism against the united states. it was clear to me when i voted for it that i was giving the president the necessary authority to take action against those who attacked our country on september 11. it is now being used beyond what congress intended. there is no question to me. we saw the most recent use of this in syria, certainly had nothing to do with the attack on our country september 11. that is true as i said initially about the interpretations under the obama administration and now the trump administration. it is used in part as justification for u.s. military operations in iraq 14 years past the u.s. invasion and long after the end of the saddam hussein regime. mere are now becoming
authorities of convenience for presidents to conduct military activities anywhere in the world . this is no longer acceptable. to continue this is a dereliction of congress duty to direct and regulate the president's use of his commander and chief authority. it is an invasion of our responsibility to the american people to ensure the united states does not stumble into war or involve himself in ill-conceived wars that are not it is a failure of our commitment to our -- brave servicemen and women when we do not clearly defined the battle in the objectives for which they must fight and risk their lives. this is the case now as the president has yet to tell us or the american people what his strategy is for defeating isil and iraq and syria, after
theaters like afghanistan, where describes threaten u.s. interests. we see the president delegating his responsibilities to others to decide what military operations are conducted and how many troops are to be committed to combat in foreign countries. it is critical to the future security of the united states congress provide the president with proper authorities to target and combat isil and its affiliates. it should be repealed and a 2001 9/11 a umf must be replaced with one that specifically targets terrorist groups. the authorities provided a new must allow the president to effectively go after direct threats to the united states and avoid granting the president unilateral authority to engage in operations practically anywhere in the world's.
let me point out, you and i have both asked the administration to present us with their strategy. they have yet to do that. there's numerous examples of where we have asked them to prevent what -- present what they need. it is difficult and must be new with the commander in chief needs as far as the use of military force combating isil forces. it is a challenge for us. repeal the 2001 and replace it. we need to know what the strategy is. they haven't done that. they are using the 2001 and 2002 authorizations beyond what we intended. the particular concern is the need for restrictions on deploying ground forces to combat isil. i do not believe escalating our direct involvement in current combat operations is beneficial to solving the crisis instigated by isil. there is no easier or short way
to commit itself to a long-term military fire than this. once committed and under attack it becomes nearly impossible to withdraw those troops. i am not at all convinced that evolving threat from isil to us and our friends and partners necessitates committing more brave men and women to ground combat operations. the need for military operation should diminish as control over territory is diminished. the organization shifts focus to terrorist attacks around the globe. the battle becomes one of assisting and building militaries and improving counterterrorism civilian security forces. law enforcement units. investigative and judicial agencies and cyber activities. as we have heard, the global reach organization moving from a
physical caliphate to a virtual caliphate. one fights something with combat troops. for all of these reasons i believe this hearing is critically important. >> we have a vote at 11:00. i think what we should do is power through those and keep going. if people could just pay attention to when their time is up, then we will move back-and-forth and continue on. our first witness, john bellinger the third, state department legal advisor. he was legal advisor to the national security council from 2001 to 2005. he has been before us in the past. the second witness, kathleen ,, dr. hicks serves as the
department of defense during the obama administration. we thank you for being here. you can summarize your comments in five minutes. we look forward to questions. if you would just begin in the order you are introduced. >> thank you mr. chairman. i agree with your comments at the offset. it is a privilege to be back before this committee. i want to commend you for your efforts to reach a consensus on a new authorization against isis and applaud the valuable contributions from senator kaine and senator flake. you have been at this for some time. senator young as well, for your recent contributions. thank you. i served as the legal advisor for the national security council. i was in the white house situation room on 9/11.
i was involved in the drafting aumf. 2001 and 2002 i engaged in almost daily discussions on legal issues relating to the use of military force including detention arising under both. 16 years after the enactment of the 2000 and, congress should umfal the outdated 2001 a and replace it with a comprehensive aumf. congress should repeal the 2002 aumf which is no longer necessary. updated is necessary to make sure our military has clear authorization from congress to use force against terrorist
engaged in hostilities against the united states and sure detention operations with -- withstand legal challenges in u.s. courts. it should remove the limitation in the 2001 to organizations that committed the 9/11 attacks. it is increasingly difficult to demonstrate that new terrorist groups that have emerged are associated with al qaeda. it is not clear the 2001 aumf authorizes force against isis because i stood not exist in 2001 and was not the group that committed the 9/11 attacks. that would provide for the illegal detention of members of isis, should authorize the president to use all necessary force against named terrorist groups and
associated organizations that have attacked or have an intention to attack the united states or u.s. persons. it should include a list of specific groups which would include at least the taliban, al qaeda, and isis, and may include other groups. i love the president to use force against additional organizations if he notifies congress that he is determined they are associated with the named organizations and are engaged in hostilities or plan to engage in hostilities. in my view it should not be limited geographically to certain countries. even if it does not limit the use of force, and united states is still required by international law to limit its use of force in or against other countries. i wouldely legal matter oppose a sunset provision. it creates legal uncertainty for
the president and military. i can understand that some kind of a sunset or review provision may be politically necessary to achieve consensus. i would oppose provisions that would seek to restrict or micromanage the use of force by the president and the military such as an absolute prohibition on ground combat. if a limitation is necessary at with support a clear prohibition such as this authorization does not include authorization for the ground invasion or occupation of any sovereign country or part thereof without further congressional authorization. might include provisions providing certain procedural protections for the use of lethal force against americans. who joined terrorist groups. authorizing but also provide procedural safeguards for detention of terror suspects captured by the military outside of the united states and certain
congressional reporting requirements. congress to make it a priority to update the war powers resolution, a bipartisan commission chaired by former secretaries of state called in practical and ineffective. actplaud the consultation of 2014, drafted by mccain and came to implement the recommendations. members of congress have understandable concerns about approving a broad new authorization and extend the what meaning the new as a forever war. i am convinced that congress can come together to agree on a new authorizatione and congressional support they need to defend united states against al qaeda, isis and other terrorist groups rather than continuing to rely on a 16-year-old authorization.
thank you for inviting me here today. i look forward to your questions. corker, i appreciate the opportunity to testify before you today. the subject of this hearing is a critical one that fails to deserve -- received the attention that it deserves. open deliberations over the decision to use military force have been foundational to all democracy. i will focus my testimony on the imperative or a new authorization for counterterrorism authorizations. in role congress must play exercising its war powers through passage, and the factors congress should consider developing an effective provision. i approach this as a former defense policymaker and evaluator including on decisions involving use of military forces and counterterrorism. the united states faces an array
of threats from violent action was groups that necessitate operations in parts of the world. current activities operate under provisions of the 2001 aumf. to create a legal justification for military action taken against terrorist group since 9/11, notably the islamic state, the executive branch has relied on an expanding interpretation the category of al qaeda associated forces provided for mf.er the 2001 au it jeopardizes our nation's principal believes in the rule of law and risks the legitimacy of the institutions designed to create, carry out and enforce such laws.
alongside the courts the united since congress conserve is a critical safeguard against any attempts to alter the quality of civilian control of the military. the path to reviving the exercise of civilian control should start by repealing and replacing the 2001 a umf. civilian control of the military is not just an end unto itself. it must be tied to policy objectives if it is to succeed. umf,eliance on the 2001 a suggests a failure on the part of the nations political leaders to bear their responsibility. a robust role in use of force decisions can spur consideration of policy alternatives, raise strategic considerations and build public support necessary for sustainable national security strategies. it strengthens our democracy and
our legitimacy. most members of congress were andted after the 2001 aumf have not been part of a discussion. the american public has not had an opportunity to participate in open debate over the approach to authorizing force in support of its counterterrorism objectives. the administration submission to defeat isis as required will be setting the stage for that public debate. what is our goal? how should be accomplish it? what is the role of u.s. military force? without an honest and frank national discourse we run the risk of the executive branch activities separating the only from the legal basis upon which use of force rests but a disconnect between the will of the people and military actions pursued by a duly elected
government. to be effective it should strike an appropriate balance between the national command authority to respond to emergency threats and congress's ability to exercise appropriate oversight. specifically congress should ensure any aumf address key entities, targeted geographical limitations, ,pecial military force reporting requirements, associated detention issues, and sunset provisions. stakeholders rightly support a to create legitimacy for the use of military force. they range of proposals from the senate and house offer pathways for repealing and replacing. the time is now right for reconsideration and discussion of congressional war powers.
thank you for your efforts to draw attention to this matter and calling this hearing today. through my views on the various issues. i will simply say, we agree on many issues. there are areas of some disagreement. most importantly we agree there is an imperative to get to a solution and move forward. thank you very much. >> thank you both. i'm going to reserve my time for introductions. -- there is party some bucking up that is occurring. we are going to remain five minutes to ask russians. . really hate it this is a serious discussion. they need to reconvene. we thank you for being with us. name --nk this subject the open hearings in our
committee. i join you in finding ways that we can make sure we can have ample time for this debate. i want to follow-up. attack on september, 9/11. had the vote in congress. we wanted to give the president maximum discretion on how to go against the perpetrators of the attack. we passed an authorization. it wasn't terribly controversial. now we see that authorization being used against groups that were not in existence. do either one of you think congress has authorized the use
of our military force against the assad regime in syria? i hope that is yes or no answer. >> i don't think that is what congress intended 16 years ago. >> certainly not under the two aumf's in discussion. >> we could get into whether we had authorized the use of military force against the terrorist groups isis. i don't believe we have authorized. i am in support of america pursuing these terrorists but i don't believe congress has authorized force. concern, whenst we give the president maximum authority, looking at what three previous administrations have for,our authorization don't we have to be concerned on
how we define this so it is not misused? with all of what you said. >> we have congressional support. it does have the appropriate limitations. they let successive presidents stretch this authorization use for particular purpose. this is a time when some appropriate limitations could be added. >> in the next question, this is the dilemma we face. you have an administration that says i'm using president obama's interpretation. why should i bother dealing with congress?
i have all the authorization i need. has a responsibility to be clear on its authorization and repeal the 2001 and replace it. how do we do that when we don't know what the president wants to use? he has not come to us? >> i do think having that dialogue, in the form of a strategy from the administration is central to understanding the right set of tools. >> but they are not having that dialogue with us. >> i'm in complete agreement. you have passed a requirement for them to submit that. that said, you can still move forward. it may not be the aumf they desire of but the burden is on them to come full up with their strategy. >> you believe it is more important for us to clarify then knowing exactly what
administration wants? unlesss doesn't pass one the commander-in-chief wants it. >> you do have the administration from the defense defense-- administration wanting a new aumf. there is a major policy and strategic issue about where we go on the counter isis campaign. said, that issue is not going to go away. by the same token you need a new aumf or they are going to continue to act under -- >> both should be repealed. you understand the need for a sunset or a review process. thank you. toyou are a great example
all. thank you. to think the chairman and the ranking member for having this hearing and not just in this area but in all areas, looking to reassert this committee on our proper constitutional role with regard to foreign policy. nowhere is that more needed than in this area. the constitution gives congress the authority to declare war. if we are not going to declare war,r war -- formal congress needs to be more involved. struck ahat we have pretty decent balance here in terms of the interest of the committee and its members. i hope we can move forward on that basis. to work on the basis of a 16-year-old aumf is
not tenable. our allies need to know where we are. our adversaries need to know where we are. we speak with one vote he's. current aumf let's congress off the hook and allows theo criticize party, and we need to have skin in the game. it is ideal world, you shouldn't have a sunset. we didn't have a sunset with regard to world war ii. sovereigngainst government. unconditional surrender is the only acceptable outcome. sheer it is not quite as clear cut.
that in the house 2001, it was an much different body with different members. todaymbers in the house aumf.t vote on the 2001 senate, do you want to know how many voted? 23. three quarters of this body hasn't voted. when you have a situation like that we are not speaking with one voice. hook.r let off of the we can criticize the administration. together one matters of foreign policy of this importance. that is what i'm pleased we are moving ahead on this. can you get some thoughts on
that? is it a different situation when you are dealing with nationstates as opposed to nonstate actors? >> i completely agree with your remarks on the overall philosophy and the need to back our armed forces. say we completely back our military. we want to give them resources. boat we need legal resources. have ther troops to legal authorization they need, and the current law is unclear now as to whether the fight being fought is legally backed by congress. ,f it comes to detention members of isis, if they have an opportunity to get into court are going to say it is not authorized by congress. perhaps the president will fall
back but there are practical .oncerns about the stretch on the sunset, as a legal matter , no administration lawyer is create legal uncertainty for commanders. as i said we would never have done that in world war ii. we are declaring war but only for a year and we will revisit it. this is a serious threat. to have congress to the military we're only in it for a couple of years is legally problematic. that is a legal perspective. i certainly understand members of congress and the american people have said that last one lasted for 16 years and got stretched. this time i would like to have a sunset. that is a reasonable thing for you to agree on. as a lawyer one would not want
to go in asking for a sunset. >> another great example. >> thank you. thank you to the witnesses. thank you senators flake and kaine framing what we are debating and discussing and for the committee and their engagement. this is a opportunity to demonstrate how the senate can work well together in a difficult constitutional moment. troopse president sends into harm's way, those men and women deserve clear authorization from congress, a , andt debate, a strategy i'm concerned we have none of those three. president trump has not presented a strategy for success. we have taken important steps and i'm encouraged to see we are having this hearing today and there is more than that.
the absence of an administration it deserves our thoughtful consideration and bipartisan effort to produce a clear path forward. we have more than 8000 american troops the cloyd and afghanistan. more may be deployed. we have hundreds in syria who isisbeen taking fire from and assad forces. i want them to succeed. we all want them to succeed. what does success look like? that requires a strategy. what are the national interests we are defending? we have to have a conversation. what it will take to achieve them. particularly when it comes to our military. i am not here to criticize the president.
i'm here to work with them to provide troops with the strategy , and support they need. encouraged our witnesses both largely agree. would you take the time i have left to talk about the strengths proposed by senators flake and kaine, and the areas that might require improvement. i'm encouraged by what has been framed and presented. >> we have a couple areas of disagreement. out, we agree on many of these areas. the one thing i would comment on, i think it is a great beginning of the conversation. two areas that are not covered under it need discussion, not necessarily inclusion, but discussion. second, is there a special attention paid to forces used in
a combat role. representative shifts bill in the house speaks to the issue of ground combat forces, as soon as possible notification. proceduretification that is faster for use of forces. i think it is an appropriate balance of giving absolute likes ability to the commanders in the executive branch while at the same time allowing the fastest possible dialogue to begin with congress. just focus on two things. i think senators kaine and flight for working incredibly hard on this. i would say one thing, the try to fix is the limitation on associated forces, to having be
part of al qaeda. i would like to talk to you more about that. we all know that one of the top two or three hardest things is defining the associated forces. so congress is not authorizing use of force against associates who say nice things about my qaeda -- al qaeda. we wanted to be al qaeda, groups fighting along with them, and keep it near row. the part to define it, as part tool qaeda seems to be tight. there may be groups that are using terminology of code belligerency. you had a different group fighting alongside an allied with al qaeda but they really are a different group and not part of al qaeda were isis.
would thinkthing i is too tight. i do think associations can't be just a group that shares the writing, but it is white paper somewhere. it is a group fighting along with al qaeda in some way. >> thank you both for your testimony. >> thank you. chairman to thank the for convening this panel. i want to thank my fellow members for their long-standing leadership on this matter. you have each spoken to the importance and appropriateness of and a umf, not just debating it, that passing in a umf. allow me to flip this issue on its head and ask a question of
you in this way. if in one year, god for bid five years, u.s. forces remained engaged in hostilities against isis, and congress has not passed in a umf, why do you believe the average american should be concerned? >> i will saying a sash say one thing legally. it is not clear about detention authority. if we start detaining members of mf thereer this old au is potential infirmity. congress has not acted to provide clear authority to detain members of isis. i would say to the american people you should be concerned congress, while saying they are backing the military, is not giving the military the legal
support they need. congress does not have your backs legally. >> i would add that we are a nation of laws. if we lose that i don't know what we stand for. i don't know why americans should believe in the institutions they have elected and support. i think that is a problem for american democracy. overlap between my concerns and yours. prerogatives,onal as elected representatives of our constituencies. this is not a power that can be delegated to the executive branch. we can't outsource our responsibilities. be, ificult as it might believe we can find some principled compromises.
as the former marine corps officer i am more sensitive. i'm certainly very sensitive to the fact we don't want to leave our troops in the lurch. they do need to know the american people have their backs. even having a debate on this issue shines a bright light on the sacrifices they are making and the propriety of our involvement in different areas. that this neweve aumf would address concerns about detention authority. ofnderstand the importance listening intelligence. from detainees and other sources. it helps save lives. that underlear
current authorities that can be done. i intend to build on my efforts, having done the best i could. i am prepared to make principled compromises as we move forward so we can formulate and a you that can pass this committee. with respect to the authorization to detain, i know it has been mentioned time and again. i wanted to be reinforced. do you believe authorizing the detention of terror suspects captured by the military outside of the u.s. would be legally helpful? why is this so important? the courts have held the world's -- words all appropriate for us to include the authority to detain. would be more helpful if congress were to specifically
say that and with respect to isis, if we don't, there will be -- habeas.on of kbs is that correct? >> potentially, yes. if they are held somewhere else in iraq, they would have the right. cleardoes make crystal that this is within the authorities we have. listening, i would hope this would be part of the aumf. >> i hope we can use it as a take up the constitutional responsibility of declaring war and guiding the civilians who must make the most
consequential decision. offered a specific authorization for military force to combat the islamic state. we worked with the executive branch as it developed congressional support of the authorities at believed it needed to prevent -- have growing threats. we worked closely with republicans on the committee to ensure that we exercised most solemn responsibility we had. so with a deep understanding and clear guidance. we may not have come to an agreement but there was as sincere effort. i was disappointed they failed to deliver nothing short of an abrogation of constitutional duty. with this president delegating authorities to the secretary of
defense and commanders in the field, i think it is critical congress embrace our oversight duties. we have had nine americans killed. campaigns have ramped up. i read about a surge in afghanistan. sense ofuinely have a what the totality of the strategy is. as congress considers a new a umf, how should we consider what some have termed the delegation of civilian control to the military itself? whenan congress away in the civilians who are supposed to be making critical decisions, including where to send troops have delegated that authority to which they are supposed to be in control of? >> i think this is a very important issue to be raising.
i appreciate you raising the question. degrees debate over the to which the president should be delegating authority to the defense department. i think you're well aware there were reviews from the military that the last administration held back to tightly. the view of most of us to look at the defense community in a pretty bipartisan way think we are going in very much the opposite direction, swinging the pendulum. the good news is that there is another in the chain of command, the secretary of defense. president,th the should be held responsible for decisions on use of force. there is a civilian in the chain. is aumf,ress can do war powers enforcement.
and i would add for this committee in particular, building up or maintaining, sustaining, protecting other tools of national power the fallout through that decision. when it moves strip from the resident to the defense department, even the most secretaries of defense will look at through a military lens. what you lose is large consideration of diplomacy, economic tools, etc. that might be appropriate to the issue at hand. anything you can do is authorizer's in that space would be welcome. >> i appreciate that, it makes a compelling case. since 9/11, we have a grappled with confronting threats that are known the state actors. which, almost by that definition, makes the capability of a complicated subject. given the nature of the threats,
had we balance between giving leaders authority to power -- target threats between borders -- example, islamic state. some claim to be part of the islamic state but acting under an allied country like the united kingdom. what do we do? >> i completely understand the concern, particularly after the .001 aumf we do not want to authorize the use of force around the world. they always worried if there was a global war we would use force in london or germany or elsewhere. i have to assure them know, we were not. . -- no, we were not. i do not think a domestic authorization should use of force -- it is against the groups. the senate could say we are limited in seven countries.
i would not specifically say force can only be used in the seven countries. as you say, the groups move. international law limits where the united states can use force to those countries that have either consented to the use of force or are unwilling or unable to prevent a threat. i would not say force can only be used in these seven countries. >> thank you. i know you missed my riveting opening comments, but i did thank you for your leadership in 2014 on this topic. >> i got a full briefing on your opening. >> thank you, sir. >> when you used your testimony and the words or peel and replace use them at a time they used to be two verbs in connotative action, now they connotative -- connote difficulty. in the state actors referred to by senator menendez and others,
in drafting this aumf, should we be specific and not naming names in terms of group names or people we are attacking by tingotative -- connota actions of the groups? ms. hicks: i do think you have to specify groups. the problem evident in this conversation today and the last 15 years, is the thorny issue of associated forces. and the process of expanding associated forces and the ability to review and were new, which i consider a sunset thing for important senate to adapt. what flake has done successfully is but a pathway in there where which i thinkes, is an appropriate limitation and
provides a process by which the executive branch can come forward with groups they would like to have added to the list. obviously they have to be able to defend the associated forces under other criteria that would be in the provision, specifically relating to threats directly to the united states and its forces and other personal. -- personnel. >> senator, i agree with that. it is important to have a list of names groups. since these can morph and there can be new groups, it is important for the president to be able to add groups. but we're not authorizing against groups completely unassociated that would revolve -- involve another authorization. but there should be those that are engaged in hostilities with the main groups, al qaeda, the taliban, isis, that you are
authorizing use against. >> to be more a draped in terms of deck learning -- declaration of another group? >> precisely. >> congress should be involved. a robusten we get into debate it will be robust with an endpoint and a decision. congress is worse than no action at all. thank you very much for your attendance today. >> senator udall. >> thank you very much, senator corker. let me say this last week with the russia-ran a sanctions, what we did on the all thehe committee, negotiations, i think it was a good example of what we need to do here in terms of reasserting
the authority of this committee and reasserting congress into these very important issues. especially the war-making long,ity, which form too i think both of you have said that, we have not stepped up or pushed to do our constitutional duty. i want to thank you both for your testimony so far. like some of my colleagues, i was in congress in 2001 and a voted for that 9/11 aumf to authorize military action against osama bin laden and al qaeda and their allies, including the taliban. thatld have never imagined vote supporting u.s. troops -- troops in syria and engagements with the assad regime, and they do not think anyone else has as i am speaking we have
another drone being shot down. with ahave this contact syrian jet. mr. belanger, the legality of doing that hundred current under current-- circumstances when we are in syria without authorization? mr. bellinger: on syria i have to say on the law, i was puzzled about the statements coming out of the pentagon that the shootdown was authorized by the 2001 aumf. i hope they will clarify that. president may have article to constitutionality. usecongress i authorizing of force against groups that committed the 9/11 attack,
authorizing use of force against syria. >> so you would say questionable authority if not outright? ms. hicks: the president made -- mr. bellinger: the president may well have constitutional authority within our interest. but it is hard for me to see syria was one of the nations that committed the 9/11 attacks or is associated with them or is co-belligerent with of them. -- with them. ms. hicks: there was a lack of transparency going back to the strike against assad against airbase-related chemical weapons use. i am not aware of legal justification for that. it may be defensible, but we have not seen legal basis. congress should insist on seeing these war power filings in whatever means possible to get the legal basis being used. there may be a very defensible way they are framing it, but we
would not know because we are not being told. >> on the issue of the sunset, i did not hear you say what your position was on that. i wanted to ask a question about that. ms. hicks: i believe in the sunset, and appropriate a way to ensure you are dealing with the congress andeping public engaged in the discourse over use of force. >> that is one of the issues you two disagree on in some respect? mr. bellinger: congress and public engaged in the discourse over use of -- >> let me add a question to this. when we consider authorizations of force we add provisions. the reason for doing that is you the -- is looking at the history of where we are today. congress has not stayed engaged. one of the ways for congress to be engaged is to say, you will come back and look at this in three years or two years.
how can you force that engagement within an agreement without having some kind of sunset? that is really my question. you two may have a little disagreement on that. i only have 30 seconds -- you only have 30 seconds. mr. bellinger: i come at this from an executive branch lawyer. the president and military will not ask for a sunset when its authority is the key sunset high authority. from a political perspective, particularly the last 16 years, i completely understand that one might want to have a sunset. if i was in your position, what i vote for a sunset to get consensus? i might well do that. if i was writing the legislation of a lawyer that wants to not have uncertainty for my troops, i would not put any sunset. you can see the difference. >> thank you both very much. >> before you do that, there is
always a sunset because obviously congress can put language in the authorization that has not been particularly effective in recent years. >> madison wrote the executive branch is most prone to war, therefore the constitution with studied care vested the power in the legislature. in no way did a article -- argue that article too was authority to initiate, commence or engage in war at all. most of the founding fathers would disagree with you on saying article two gives the president power to declare war. two protect the country from imminent attack, it is a congressional duty, not the president's at all. even the war powers act has reporting requirements in their. it also says in another section, this reporting requirement is for either imminent attack or
authorized war. i agree completely with the authors that we should be doing something. i applaud their motives. i do not question their motives. doubt this will change our military interventions as to what we are doing. are we going to limit the president's power and take back our power? -- ink of five-year sunset do not mean to be mean, but it is essentially done. we had millions of people die in five-year wars before. it is virtually meaningless. as far as the geographic limit, virtually meaningless. those the substantially support al qaeda, the taliban, islamic state -- they are in 32 countries now. when you add in al qaeda and taliban, 50 or 60 countries. i do not want to go to war in 50 or 60 countries. if we limit something, have a
debate. to say, itsomething is not limiting. one testimony says, you have article two, just be nice. it would be nice to have an aumf . there is supposed it not be a war without aumf. this is illegal war at this point. and asklook at this ourselves what are we doing here, are we going to limit the power, limit the duration of the war? proclamation -- over and over again they said , thatated purse -- powers is not even in the document. people saying you can do anything you want now, for 15 years. doingactical question is, anything you want, killing every perceived enemy and leader or chieftain of people in some
misbegotten village, is it helping? will be defeated and ideology by killing people? i do not think war in yemen is helping us, i do not think the rating yemen made us safer. in fact -- and i do not blame our soldiers for this. i have members of my family and active duty. they do what they are told, they are brave young men and women. 45 people in kill an al qaeda village and their wives and children. i do not say it is intentional -- is it better, do we have less terrorists or more? what do you think happens in that village and surrounding that decade -- village for decades? for hundreds of years there will be talking about how the americans came and killed their people. they will talk about the saudis dropping bombs on a funeral procession. that is not go away. 680 remember battles from -- from 680 ad.
my favorite saying, you have all the watches, we have all the time. they will wait us out. we can drop jones on everyone we think in a village has an -- a radical ideology. we should defend ourselves but be more specific than this. i will not vote something that does not limit the president's power but simply gives a rubberstamp to what we are doing. i would argue our founding fathers did not believe in unlimited article to authority. it was virtually unlimited to execute an already initiated war. if you look at every founding father, washington, adams, jefferson, madison, each agreed the power to initiate war was congress's. it was imminent attack, but jefferson worried he needed to come back and he did come back.
they did vote on authorizing that activity. that is not what we're talking about. we're not talking about repelling attackers in the open seas, we are talking about worldwide war. this authorization will not limit that in any way. i have no question, thank you. >> senator paul, will you yield to a question? this is not a belligerent question. i think your comments are exactly the kind of robust debate congress needs and the american people need to do, and the founding fathers intended when they put it -- that those provisions in their. i would like you to respond, this is not a belligerent question, but there are those that would argue in response to her allegations of what we are doing is illegal, they would say congress has to authorize military force. there is no exact way they have to do it. one way is by appropriating funds, thereby giving it the ok.
there are people that make that argument. how would you respond? again, it is not a belligerent question. the heart of the matter, there are two ways you can initiate war. you initiate through authorization and through funding. you can discontinue funding, that is one way of ending it. to and something that was never initiated. we have award never initiated by congress. i would argue that practically it is difficult to stop funding because the argument would be, like they say, i have active members of my family, do i want to stop funding them in the middle of their battle? it is much more difficult that way. intended tote was be at the beginning before we start funding a war. even in vietnam, the most acrimonious our country has been in terms of war other than the i think of the very end we still did not defund it.
we never voted to defund even a very unpopular war. for practical and constitutional purposes i would say our job is before we get to the funding part. to all my colleagues, i appreciate the chair and ranking doing this hearing. i have enjoyed working with senator flake, senator young. this is in the session. i represent the state most collected to the u.s. military. marinea child who was a infantry officer, it is an obsession of mine. this is about lessons learned. i will talk about what this bill means. lessons learned after 16 years, if we cannot learn from things after 16 years of war, shame on us. we are to be up to learn some things. this is the third aumf i have introduced. one on my own in september of 2014 after president obama signed an offense against isis.
one with senator flake in the summer of 2015 and this is number three. it is hard to craft and -- against -- craft an authorization against nonstate actors. nonstate actors which we will be living with for a long time pose additional challenges. it is important we do it. i applaud the fact you agree on more than you disagree. you especially agree it is time for congress to act. what does the flake-kaine bill do? we try to fix three problems with the existing limitless status quo. first, we try to fix, who are we fighting with, by naming specific groups, not perpetrators of attacks. we fix this problem by fixing the associated force definition. it was not contained in the original authorization.
it has two components. to be an associated force you have to be connected with al qaeda, isis, or telegram. but you also have to be engaged in hostilities against the united states. it does not authorize anyone connected to the taliban that we will go after them anywhere. but if they are engaged in hostilities against the united states that is the second factor. we try to tighten up the definition of who we are fighting against. a listing process where the president actually lists those groups that have to meet both criteria. if congress believes he is listing a group that does meet criteria, we have a disapproval project. that is the first issue, who are we fighting against? second issued a fix, where are we fighting? the 2001 authorization had no geographic description. this takes place in the current handful of nations we are
engaging against the taliban, isis, al qaeda. it allows a similar listing process the president believes we need to take action against those groups or tight definition of associated forces elsewhere, he can come forth with the limitation. again, congress has the ability of disapproval, to deny that, if we think it is an unnecessary stretch. the third problem we try to fix is, how long will we fight? 16 years in, we have learned something and learned about zombie authorization that can go on into perpetuity. i wish we had a phrase other than a sunset clause, but what we have done is put in the mandatory review at five years, which is actually 21 years, if you count the first 16 years of this. at 21 years we would have a review to determine whether we needed to go forward. senator flake and i give this expedited consideration, but
under normal voting procedures. it would take the 60 vote threshold to continue beyond. these are three problems that exist, three things we should have learned from in areas we addressed. senator young raises a good issue. that is why robust discussion and debates are necessary in the committee. to conclude, it is time to do this. it is a new administration, that is always a good time to do this. and we have both the secretary of defense and head of joint chief of staff's release 10 days ago, testified before the armed services committee and said, we should do this. these are president trump's appointees. our military leadership is telling congress we should do it. uh said things you think are important. you did not say this, and what to ask if you think it is important.
how important is it we do this in a bipartisan way, as opposed to a partisan vote? >> senator, thank you. senator paul is not here anymore, but your bill would place the limitations -- you can argue about how those ought to be done, but instead of having a very broad authorization, this allows limits to be put on it to address concerns. you have raised important points. know different groups raise concerns about legislating that, i see that -- putting in safeguards so you know you were ensuring the right people are detained for no longer than is necessary. i think it is important to do this in a bipartisan way. i come away from this hearing agreement largely convinced members can work out these details. they are not that far apart,
they are important points. we ought to be a to get that language. i am convinced this can be done and should be done in a bipartisan way. thank you for your leadership in senator flake doing it that way. at least from the perspective of one lawyer. ms. hicks: i completely agree with everything mr. belanger said.- bellinger from the human rights community to the military community, it is about the role of congress, the fundamentals of our democracy. it does not get more fundamental than the question of congress and the use of force. >> i find myself by myself. and unprepared. [laughter] >> let me ask you this, we were talking about the fact you had written the aumf back in 2001.
obviously it had been very durable. if you are going to start from scratch -- i know flake and kaine have done great work and we have had dozens of iterations. thisw you have been asked in different ways, but if you whattarting from scratch, with some of the attributes that that you would add, or do exist that you would change? >> you give me too much credit. i was the legal advisor when it was drafted. i pointed them -- >> i remember the grammatical errors, and you do not want to claim those. mr. bellinger: i was there when it was drafted, consulted on it. it was drafted very quickly, a couple days after 9/11 when the
pentagon was still smoldering. i do think now, if one were starting from scratch, one, we have new groups that did not exist at the time. it is important. >> i am talking about currently. mr. bellinger: if we were -- >> the one that has been proposed. mr. bellinger: i would say two things. the associated force definition is too narrow for me. i would like to hear from whytors flake and kaine they said for group to be associated it would literally have to be part of al qaeda or isis. there seemed to be groups that that arelligerents fighting alongside but not part of al qaeda. that strikes me as too tight.
i understand you do not want to go to broadly to say anything associated, such as they met in the street sometime. that is too broad. but part of al qaeda or isis seems to be new -- too narrow. i would add detention provisions, ideally. but the affirmative power to detain, i would balance safeguards. if congress is authorizing detention of people under laws of war, there ought to be protections to make sure people detained are the right people, and for no longer than is necessary. i defer to you on that disapproval provisions. kaine senators flake and worked hard on those. it is a lot of pages, quite complicated. >> one moment, we addressed numbers of issues in the russia sanctions bill last week and iran sanctions bill that work in the opposite way.
in their situation they sunset and put another procedure in place to extend it. the opposite way of doing that is for congress to it anytime have the ability to end it for about. -- a vote. it would keep us from a situation where we end up with no authorization to deal with what is happening around the world. can you give input there to what you think is a better place for us to be? both of you? where instead having a hard deadline and procedure and people know it is coming and people around the world wonder if we will continue on, instead of having that, have a reversal of that were congress can at any not ended and state we do want to be involved in a third country with a certain group? mr. bellinger: that is an excellent question, gets to my point about sunset. would be toference not have a sunset because e then
ends.-- because then it i would rather have a review provision then know that it will end. theerably, if you are in military, you want to know now that your legal authority to go up in smoke and help members of congress will authorize it after a couple of years, but i do understand the politics of this. >> in 20 seconds, dr. hicks. >> the departments of defense would love it if there was a defense budget. i do think as senator kaine was saying, it creates an incentive structure that drives congress to take on its role in the conversation. i don't think it is unduly
burdensome to the military commander. five years is essentially a lifetime in how they think about their authorities. >> thank you. senator martin. >> thank you, mr. chairman. dr. hicks, in your testimony you say it is appropriate for a new uamf to create a most stringent notification requirement for the president's use of ground forces in combating terrorist troops and recommend language that gives the president expansive authority to send our service men and women into combat, as in the notifies congress as soon as possible. what is your perspective on whether we should include any requirement for the president notifying congress within 48 hours after he substantially enlarges the level of u.s. forces in a foreign country where combat appears likely? >> i think the fundamental challenge for a new uamf in all
aspects is this balancing of ensuring the what's ability -- is ensuring the flexibility of what the commander needs on the ground. and the appropriate role of congressional oversight. i think the bill put forward by representative schiff with regard to notification on ground forces used in a combat role is an example of an appropriate balance. it is an notification and allows congress to the earliest possible opportunity to start to engage in the conversation over authorities upon which that is based over a discussion of resources being expended. principles, etc. but it also does not really create a burden for the commander and so, i think that is a reasonable way forward. >> thank you, mr. belanger, use of targeted killings, most prominently using drones, is the form of use of armed force and
our default under the congress' wall of powers. mr. belanger, what is your perspective on the interplay between the multiple sources of authority for the government's targeted killing programs and congressional oversight of these operations under the war powers act? >> the executive branch is counting out, as i understand it , drone attacks, targeted killings under different authorities, some of them military or under the uamf. some of them could be under intelligence authorities. the conceivably under the president's article ii authority, i think most of it is probably authorized by congress. >> so, you should just we revise the war of powers that? >how would, in your view, a new authorization deal with this issue? what would be the recommendations he would make in terms of the restrictions that would have to begin to
congress? >> right. i don't know that they would address the drone issue. i think you mean more generally. >> the targeted killing issue. >> the war powers resolution changes what most people think are necessary. it would address the drone issue. they have more to do with the 60 day clock. >> if we revise the war powers act, it wouldn't relate to the targeted killings? >> of course, you could revise it anyway you want to revise it. i don't think i would or i have heard anybody say that the war powers resolution flaws our things that really are related to drones. they are related more to the problem of the 60 day clock and presidents stretching their authority to avoid the 60 day clock in the war powers resolution. >> thank you, mr. chairman. >> senator murphy. >> thank you, mr. chairman.
i wanted to turn back to this question of the president's article ii authority in the context of an externally set of events playing out in syria. extraordinary set of events playing out in syria. this morning we had the fit the right confrontation between u.s. forces inside syria and the syrian regime affiliated forces, none of which is authorized. secretary tillerson stood before us and admitted as such there is zero legal authority, not even through a perversion of the 2001 or 2003 uamf to begin military action against the syrian regime and yet, it seems as if this is not a series of one off incidents, as we know have five within 45 days. i want to explore with you the limits of the president's article ii authority in the
context of a developing war between the united states and the syrian regime that may end up in a major shooting conflict that occupies all of our attention in the not so distant future. two questions to both of you, two ways to view this. first is the justification that we are engaged in self-defense. there is a, i would imagine there is a limit to that argument. just because the other guys issued first does not mean that you don't need an authorization to continue to return fire. so, we are now five engagements in to the argument of self-defense. how do we begin to parse when this is article ii authority and when the president needs an authorization? simply because you are sitting in a conflict zone and somebody is shooting at you does not mean you can engage in long-term hostilities without us. second, the justification has
been used for at least one of these attacks -- the iranian made drones, that it is in defense not of u.s. forces, but in defense of non state after forces that we are supporting on the ground. that seems clear. that seems to me there is no way that is in article ii authority. and so, i would love for you to confirm whether my suspicions are right on the second count and to address the limits of article ii authority with respect to the justification of self-defense. >> well, we can divide this up. i agree with something dr. hicks said before you came in, which is a thing for the bus would like to see clarity out of the administration about their legal position. when i was legal advisor of the state department, this was my credo. when the united states is doing edgy or controversial things, legally, we ought to say why we are doing them. we as the united states believe
in the rule of law, we believe we are acting legally. we always try to do that and if we are, we ought to say why. others might not always agree, but we ought to say what we are doing and when i was legal advisor, i tried to explain our actions and i would like to see those same things here. i would like to see clarification on the strikes against the chemical weapons in response of a month or so ago and now. like you, i see -- i have a hard time seeing the congress authorize the use of force uamf,t syria in the 2001 or the use of force against the syrian aircraft because they were doing something to groups we were supporting. i've not yet heard the administration's position, so i would like to hear that. but i do not see how it can be justified under the 2001 uamf because syria is not one of the nations that committed the 9/11
attacks and it is not a co-belligerent with al qaeda. i assume therefore it must be under the president's article ii authority and there it would have to be under a national interest test. for us to know that, we would have to know abou more about what the national interest was the present itself. that is a matter of the domestic law. i want to make sure we are acting consistent with international law and so, your points about self-defense i think are also important. we do not appear to be defending ourselves. we were defending someone else, but it is not clear, at least not to me until i learn more, that there was a collective right of self-defense, but this is why we would like to hear more about the administration's justification. >> i agree with everything mr. belanger said. i would add that my recollection is in the 2014 decision regarding the uamf, secretary kerry was brought in. i think the same should be broughdone with secretary tille.
>> thank you. i think this question of article ii authority is really important. i'm not national interest is very broad. someone say it is imminent threat. that is an important distinction. >> on behalf of the committee, i will ask formally what authority they are relying upon for this and i will go out today. i will say the dilemma we find is just as some limitations he referred to earlier about no ground troops in countries which, let's face is part of the menendez effort in 2014, there were numbers of members that wanted to limit our ability to have ground troops, so we have begun to rely upon proxies. f is a are in fact, the sd group that we have armed, that we have trained. what's happened is, the assad regime and russian airplanes have come against them, the very
group they are supporting. we can't have it both ways. if we are not willing ourselves to send ground troops in, if we are going to rely on foreign proxies, and we do that in many cases because they are indigenous and can actually govern after the fact, we have to somehow make accommodations for the fact that if they come under attack from others and we are giving them close air support or support of other kind, we've got to figure out a way to address that. and i'm more than willing to enter into this, but would you like to respond as to how we uamf thate a takes into account proxies might come under threat, how do we deal with that? >> this is something we can do together as a policy matter and legal matter. as a policy matter, you understand. -- you are right, senator. if we are supporting people in another country and they get
attacked, we want to provide them support as a policy matter. as a legal matter though, it is much harder, in that we do not, i think under the uamf, or under international law, have a right to be using force in another country that has not consented to the use of force, if we are not defending ourselves. it's the right of self-defense against us, or defending collectively some other country. it's a stretch for me to see that we have a legal right, either authorized by congress under the 2001 uamf, or under international law, to use force to defend a group that we are arming. as a legal matter. but i understand your point as sort of a policy or moral matter. >> we have to have a strategy. we have to understand what the goals are, and then we have to have a legal basis that supports that. i think we are completely disconnected on all these elements in a think that has
been true for some time, to be somewhat fair to the administration. i want to footstomp the point made on international law. we are short, if you will, all around. there is not a u.n. resolution. this is not an ally to whom we have a treaty obligation. we don't have it covered under the uamf. if we had a sense of the policy and strategy we wanted to pursue as a nation we could create for ourselves a legal basis, but we are operating in a void of strategy policy and the legal basis. >> so, both of you will be relying upon in the upcoming weeks for input we will need to have, and we will likely need to have another hearing in light of what has happened this morning. i'm going to call this to a close. the record will be open until close of business on thursday. i know you have other jobs, but to the extent you could answer promptly, we will be engaging you very directly from the
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violence. >> to hear these stories, to hear words like you said,, dehumanizing, their lives derailed, the way lives go off track, these are not just sitting on a shelf. these are people's lives, sitting on a shelf, getting derailed. children getting derailed. of what is this life supposed to be. i was on this tribe. i cannot even make sense of what is happening to me. we have been letting perpetrators go by not testing this and saying we care about this issue. >> and senator rand paul on the proposed arms sale to saudi arabia. >> we will discuss something even more important than an arms sale, whether we should be actively involved. should the united states be actively involved with refueling the saudi plains, with picking
targets, with having advisers on the ground? should we be at war in yemen? >> c-span programs are available at www.c-span.org. right on our home page, or by searching the video library. >> boeing executive patrick shanahan is the nominee to be deputy defense secretary. at his senate confirmation hearing he promised to divest all ties to the boeing company, and answered questions about his past views on russian intervention in ukraine. this senate armed services committee hearing is an hour and a half. >> good morning. we are meeting this morning to consider the nomination of patrick shanahan to be deputy secretary of defense of the un